PEREZ v. 1860 MORRIS ASSOCIATES

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Supreme Court, Appellate Division, First Department, New York.

Jose E. PEREZ, Plaintiff-Respondent, v. 1860 MORRIS ASSOCIATES, et al., Defendants-Appellants.

Decided: August 17, 2000

ROSENBERGER, J.P., WILLIAMS, MAZZARELLI, RUBIN and FRIEDMAN, JJ. Robert A. Tolchin, for Plaintiff-Respondent. Eric A. Diamond, for Defendants-Appellants.

Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered October 19, 1999, which denied defendants' cross-motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the cross-motion granted, and the complaint dismissed.   The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint.

Plaintiff, a superintendent who was injured while changing a light bulb in a building managed by Annal Management Company (Annal), commenced this action against defendants, the owners of the building.   Thereafter, defendants sought dismissal of the complaint, asserting that they were plaintiff's employer and that, therefore, the action was barred by the Workers' Compensation Law.   Supreme Court denied the motion, concluding that a question of fact existed as to plaintiff's employment status.   This was error.

The evidence submitted by defendants shows that they reimbursed Annal for the cost of plaintiff's salary and workers' compensation insurance.   Moreover, the collective bargaining agreement (CBA) governing plaintiff's employment obligated defendants to continue plaintiff's employment even if they employed a new management company to supervise the daily operation of their property.   The CBA further provided that, even if defendants were to sell the building, they would remain bound by the terms of the agreement (vis-a-vis plaintiff) in the absence of an assumption of those contractual liabilities by the new owners.   Defendants have thus established, as a matter of law, that plaintiff must be deemed their employee (cf., Thompson v. Grumman Aerospace Corp., 78 N.Y.2d 553, 557-558, 578 N.Y.S.2d 106, 585 N.E.2d 355;  Crean v. Queens Blvd. Tenants Corp., 252 A.D.2d 352, 675 N.Y.S.2d 533, lv. denied 93 N.Y.2d 809, 694 N.Y.S.2d 631, 716 N.E.2d 696).   Accordingly, as Workers' Compensation Law § 29[6] bars an action by an employee against his employer, Supreme Court should have granted defendants' motion and dismissed the complaint.

MEMORANDUM DECISION.